Perrett v. Harmar Township

August 8, 2008

REILLY PERRETT, PLAINTIFF,v.HARMAR TOWNSHIP, DEFENDANT.

The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION AND ORDER OF COURT SYNOPSIS

Pending before the Court is the Motion for Summary Judgment filed by Defendant Harmar Township. (Doc. No. 46). Both parties have filed briefs in this matter. (Doc. Nos. 47 and 60). Defendant has filed a Concise Statements of Material Facts, Plaintiff has filed a CounterStatement of Material Facts, and both parties have filed responses to the opposing party's facts. (Doc. Nos. 48, 49, 57, 58, 59, and 63). Defendant has also filed a Reply to Plaintiff's Brief in Opposition. (Doc. Nos. 64, 65). After careful consideration of the submissions of the parties, and for the reasons discussed below, Defendant's Motion (Doc. No. 46) is granted in part and denied in part.

I. APPLICABLE LEGAL STANDARD

Summary judgment is applicable when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56 (c). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). However, as the Supreme Court has recently emphasized, "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) (internal quotations omitted). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. (emphasis in original).

II. FACTS

The factual background in this case is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. As our Supreme Court has stated; "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Plaintiff Reilly Perrett was employed as Chief of Police for Harmar Township, Pennsylvania from August 23, 2004 until March 6, 2007 when he was fired by the Board of Supervisors. (PCMF ¶ 8-9).*fn1 The elected Harmar Township supervisors at the time of the firing were Kimberly Toney, James DiPalma, Donald Muse, Barbara Noll, and Anthony Rozzano. (PRMF ¶ 8). Barbara Noll and Kim Toney were political allies during the period relevant to Perrett's firing. (PCMF ¶ 2). Rozzano was a political ally of the two women until mid-2007. (PCMF ¶ 3-4).

Robert W . Seibert, Jr. is a former Harmar Supervisor whose last term on the Board expired in December, 2005. (PCMF ¶ 11). During his time as Supervisor, Seibert participated in the termination of Richard Toney from his position as Chief of Police for Harmar Township.

(PRMF ¶ 29).*fn2 Richard Toney was fired in May 2004. (PRMF ¶ 27). Richard Toney is Supervisor Toney's husband. (PRMF ¶ 23). Seibert and the Toneys were involved in subsequent litigation. (PRMF ¶ 37). On September 3, 2006, Rick Toney was rehired into the position of Captain. (PRMF ¶ 22). The rehiring was part of a settlement in the lawsuit captioned Richard A. Toney and Kimberly Toney v. Robert W . Seibert, Jr. et al, No. 06-4478, filed in this District. (PRMF ¶ 22).

Plaintiff was promoted to Chief of Police on August 23, 2004 subsequent to Richard Toney's firing. (PCMF ¶ 8). His promotion came at a time when Seibert and his political allies had control of the Board of Supervisors. (PCMF ¶ 39). Nearly a year later, an employment contract ("Agreement")was signed between Harmar Township and Reilly Perrett on August 15, 2005. (PCMF ¶ 435). Plaintiff's Agreement contained a clause which states: "Anytime during this Agreement, Employee shall have the sole right and option to resign as Chief of Police and return to his prior rank of Captain, a bargaining unit position, at a rate of compensation that has been established for Captains under the Collective Bargaining Agreement." (PCMF ¶ 423).

After the rehiring of Richard Toney, Perrett became concerned that a majority of the Supervisors would terminate his employment as Chief of Police. (PRMF ¶ 42). In September 2006, Perrett contacted the Pennsylvania Ethics Commission for information on filing an ethics complaint against Supervisor Toney. (PSMF ¶ 10). On October 25, 2006, Perrett filed a complaint with the Pennsylvania Ethics Commission against Supervisor Toney because he believed she was wasting government assets and taxpayer money in attempting to get her husband's job back. (PSMF ¶ 11)

During 2006, Perrett was not suspended, demoted, disciplined, or terminated. (PCMF ¶ 6). However, on October 9, 2006, the police committee of Harmar Township wrote a letter to Attorney Gretchen Love requesting that she contact Supervisor Muse, who was at the time Chairman of the Board of Supervisors, to discuss allowing her to proceed with a disciplinary investigation against Perrett. (PRMF ¶ 43).

Perrett became aware that between October 9, 2006 and October 31, 2006, Attorney Love was checking payroll and the schedule. (PRMF ¶ 45). During the course of her investigation, Attorney Love wrote a report to Supervisor Noll dated December 27, 2006 noting inconsistencies between the police schedule and payroll and suggesting a manner in which to proceed. (PRMF ¶ 52). Love then met with the Police Committee of Harmar Township on January 9, 2007. (PRMF ¶ 53). Perrett then received a letter from the Pennsylvania Ethics Commission on January 10, 2007 stating that it would not commence a full investigation into his ethics complaint. (PCMF ¶ 14).

Following a meeting with the police committee, interviews with other Harmar police officers, and two meetings with Plaintiff, Attorney Love recommended that Plaintiff's employment be terminated. (PRMF ¶ ¶ 54, 58, 55). The first two meetings between Love and Plaintiff took place on January 19, 2007 and February 16 or 22, 2007. (PCMF ¶ 15, 18; PRMF ¶ 58). On February 27, 2007, Plaintiff was given a letter enclosing a statement of charges and advising him that he was to attend a meeting the next day, February 28, 2007, to answer additional questions of the police committee. (PCMF ¶ 19). On February 28, 2007, Plaintiff met with Attorney Love and Supervisor Rozzano. (PCMF ¶ 20). Plaintiff requested an attorney but was told that he was not permitted to have one. (PCMF ¶ 20). At the conclusion of the meeting, Supervisor Rozzano gave Plaintiff a letter informing him that he was placed on administrative paid leave effective immediately. (PCMF ¶ 23).

On March 2, 2007, Plaintiff's prior attorney wrote a letter to Attorney Love requesting that Plaintiff be permitted to return to his prior rank of Captain pursuant to his employment contract with the township dated August 15, 2005. (PCMF ¶ 24, 446). On March 6, 2007, Plaintiff was terminated from his position as Chief of Police at a public meeting. Supervisors Muse, Noll, and Rozzano voted to terminate Perrett's employment. (PRMF ¶ 9,10). Supervisors Toney and DiPalma did not participate in the vote. Plaintiff was then sent a letter informing him of his termination. (PCMF ¶ 469).

III. PROCEDURAL HISTORY

Plaintiff filed his complaint against Harmar Township on May 4, 2007. A First Amended Complaint was filed on May 7, 2007 and a Second Amended Complaint was filed on June 26, 2007. In Plaintiff's Second Amended Complaint, he makes five separate claims against the defendant. He alleges that he was fired in retaliation for the ethics complaint that he filed against Supervisor Toney in contravention of his First Amendment rights (Count I); that he was deprived of due process under 18 U.S.C. §1983 during the pre-termination process (Count II); that he was terminated in violation of Pennsylvania's W histleblower law, 43 P.S.§ 1421 et.seq. (Count III); that he was terminated in violation of Pennsylvania's Police Tenure Act, 53 P.S. §812 (Count IV); and that his employment contract of August 15, 2005 was breached (Count V).

On July 13, 2007, defendant filed a Partial Motion to Dismiss under Rule 12 (b)(6) and a motion for a more definitive statement under Rule 12 (e). (Doc. No. 16). In its Motion to Dismiss, Defendant argued that Plaintiff's claims under the Police Tenure Act and federal due process must fail because Plaintiff was provided with adequate process throughout his discharge. Defendant also claimed that the Plaintiff's employment contract was void as a matter of law. I denied the motion to dismiss and the motion for a more definitive statement on September 17, 2007. (Doc. No. 33).

IV. DEFENDANT'S MOTION

The Defendant filed this Motion for Summary Judgment on March 5, 2008 and raises several arguments as to why Plaintiff's claims should be dismissed in their entirety. Defendant argues that Plaintiff's First Amendment and state whistleblower law retaliation claims fail because the record does not show that the Defendant had knowledge of the filing of Plaintiff's ethics complaint and because Plaintiff's speech was unprotected as it fell within his official duties. Defendant also argues that Plaintiff has no claim for a violation of due process of law or his rights under the Police Tenure Act because he was given an appropriate pre-termination process and waived his right to a post-termination evidentiary hearing. Finally, Defendant argues that Plaintiff cannot pursue his contract claim because Harmar's previous Board of Supervisors had no statutory authority to enter into a contract that would allow Plaintiff to circumvent provisions of the Police Tenure Act.

A. COUNTS I and III, FIRST AMENDMENT and PENNSYLVANIA WHISTLEBLOWER

As stated above, Perrett contends that Harmar Township retaliated against him for having filed an ethics complaint against Supervisor Toney. Perrett's complaint alleged that Toney was wasting government assets and taxpayer money in attempting to get her husband rehired. Harmar Township disputes that Perrett was acting as a citizen rather than in the course of his public duty when filing his ethics complaint and denies that there is sufficient evidence of a causal connection between the ethics complaint and the firing of Perrett.

Plaintiff offers his record of the retaliation taken by the Township in his exhibits as follows. Plaintiff was in Rozzano's office with Muse when Muse asked Perrett if he filed the "labor relations papers" and told Perrett that "he should never have done so." (PSMF ¶ 472, Perrett 8-11). At the same meeting, Rozzano told Perrett that Defendant was "tired of him filing papers against them, that they had enough of him and were done with him." (PSMF ¶ 473, Perrett 8-11, 37-39). Immediately after Supervisor Toney recieved a letter dated January 10, 2007, from the Ethics Commission stating that the Commission was not going to further investigate a complaint involving Toney, Defendant investigated Plaintiff and terminated him thereafter. (PSMF ¶ 474, Perrett 8-11). Defendant never took any disciplinary action against Perrett until after Supervisor Toney received the letter from the Ethics Commission confirming that it would not further investigate a complaint against her. (PSMF ¶ 478, Perrett 124-128). Supervisor Toney stated in a newspaper article that the majority of the Board of Supervisors should be able to pick their own Chief of Police. (PSMF ¶ 476, Perrett 34, 35). In late November/early December 2006, Police Officers Fechke, Swetof, and Lt. Gaal told Perrett that Rozzano stated to each of them there was an Ethics Commission investigation. (PSMF ¶ 477, Perrett 53-57). Defendant also points to some evidence he suggests Plaintiff will use in support of his retaliation claim.

Defendant first argues that Perrett's speech in the form of the ethics complaint is not protected under the First Amendment because Perrett was acting in the course of his public duty when he made the complaint. Plaintiff points to his affidavit in contravention of this argument suggesting that because he signed the complaint as an individual and not using his title and used his home address, it was not within his public duties. (PCMF ¶ 44, Appendix Exhibit 33).

To establish a prima facie case of retaliation under 42 U.S.C. &sect;1983 a plaintiff must demonstrate that: 1) that the activity at issue is protected by the First Amendment, 2) that the defendant took adverse employment actions against her, and 3) that there was a causal connection between the adverse action and her protected activity. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006); Nelson v. Upsala College, 51 F.3d 383, 386 (3d. Cir. 1995). A statement made by an employee is protected when it: 1) is made by the employee in his capacity as a citizen; 2) the statement involved a matter of public concern; and 3) the government did not have an adequate justification for treating the speaker differently than a member ...

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